by Dr. Matthew Robinson
Associate Professor of Criminal Justice
Appalachian State University
robinsnmb@appstate.edu
Note: This is a DRAFT of a book chapter and IS NOT to be used
for any purpose without the written permission of the author. The
paper is intended as a supplemental reading for students in Dr. Robinson's
classes.
Introduction
The word fair is defined by Merriam-Webster's dictionary (2003) as: "marked by impartiality and honesty ... free from self-interest, prejudice, or favoritism." Related words include just, equitable, impartial, unbiased, dispassionate, and objective, all of which mean "free from favor toward either or any side."
Many believe that the criminal justice system is fair. Simply stated, this is a myth. In fact, all criminal justice processes are rooted in the criminal law, which is influenced by ideology and politics, and which is tilted in favor of special interests. Ideological and political concerns drive criminal justice policy, meaning polices are typically created and supported to the degree they serve the moral and financial interests of those who propose and create them rather than the interests of society as a whole. This means the criminal justice system is not objective.
Criminal justice practices are also plagued by numerous prejudices, meaning they are not unbiased or impartial. Criminal justice operations sometimes even violate the law, meaning they are not just. The criminal justice system disproportionately harms some groups of people more than others, meaning it is not equitable. The prevailing attitude which underlies modern criminal justice is hateful and is aimed at revenge, meaning that criminal justice is not dispassionate.
In this essay I show how American criminal justice processes are unfair,
unjust, inequitable, partial, biased, vengeful, and subjective. I begin
with a brief discussion of the criminal justice system and its ideal goals.
The Criminal Justice System
The criminal justice system is the term used to describe the interdependent components of the police, courts, and correctional facilities within the federal government, as well as the agencies of criminal justice of each of the fifty states. The criminal justice system is a whole, made up of these three interdependent components. Some would add law-making as a fourth component of criminal justice, for all criminal justice system activity emanates from the law. This is important to understand because, as I will show, most unfairness in criminal justice comes from the law (Robinson 2001).
Although the police, courts, and corrections have their own functions
and personnel, they are expected to work together as a unified whole, in
balance, to serve some common purposes in an organized and harmonious manner.
These common purposes are generally understood to include reducing crime
and doing justice.
Ideal Goals of the Criminal Justice System
Reducing crime can be achieved through reactive means (such as responding to a call for service, making an arrest, obtaining a criminal conviction, and carrying out the punishment imposed by the court), or through proactive means (such as eliminating the conditions that produce criminality). The former type of crime reduction is referred to as crime control, and accurately depicts the majority of criminal justice activity in the United States. The latter type of crime reduction is referred to as crime prevention, and is far less common in America.
Doing justice has two related meanings, both of which are reflected in Justitia, the blindfolded lady justice who holds a sword and scales who adorns many courthouses and legal buildings across the country. The sword is thought to represent the first meaning of justice, which is aimed at holding the guilty responsible for the harms they inflict on the innocent. If a criminal is not punished for his or her wrongdoings, we would say that justice has not been achieved. This type of justice is referred to as corrective justice (as in corrections or punishment), or justice as an outcome (Robinson 2002). The scales and blindfold are thought to represent fairness, the second meaning of justice. This conception of justice assumes that all persons will be treated equally in the eyes of the law - that justice will be blind. Justice thus would not be present when any group is somehow left out or singled out for differential treatment by the law. This type of justice is referred to as procedural justice, or justice as a process (Robinson 2002).
Proponents of justice as an outcome seek to make American criminal justice
more punitive in order to achieve vengeance for crime victims and retribution
for society. Research suggests that efforts such as increased use of incarceration,
longer average sentences, mandatory sentences, and more executions over
the past three decades have eroded the procedures that make American criminal
justice processes fair (Robinson 2002). If true, this means seeking justice
as an outcome threatens justice as a process, and thereby makes the criminal
justice system less fair.
Due process
Whichever conception of justice you think is the most important, America's Constitution requires due process of law, which can be thought of providing accused criminals with the process they are due. These include freedom from unreasonable searches and seizures (Fourth Amendment), freedom from arrest or search without probable cause (Fourth Amendment), freedom from self-incrimination (Fifth Amendment), freedom from double jeopardy (Fifth Amendment), freedom from cruel and unusual punishment (Eighth Amendment), freedom from excessive bail or fines (Eighth Amendment), right to speedy, public, and fair trial by jury (Sixth Amendment), right to an impartial jury (Sixth Amendment), right to counsel (Sixth Amendment), and most generally, freedom from being deprived of life, liberty, or property without due process of law (Fifth Amendment). When these rights are violated, justice as a process has not been achieved, and the criminal justice system is unfair.
When fighting crime to achieve justice as an outcome, police, courts,
and corrections personnel should refrain from behaving in ways that may
threaten justice as a process. When police investigate crimes and arrest
suspects, their desire to reduce crime should not interfere with ensuring
that the right person is caught. Additionally, personal prejudices and
animosities should not affect officers' behaviors when interacting with
citizens. Members of the courtroom workgroup, including the prosecutor
and defense attorney, should act first as officers of the court, and therefore
not violate their commitment to the ethics of their profession. Judges
also should be fair in administering sentences and should ensure that prosecutors
and defense attorneys follow the law. Finally, correctional facilities
must not permit offenders to be assaulted or unduly humiliated for the
sake of the enjoyment or empowerment of their employees. Punishment should
always be administered humanely and fairly.
Shifting priorities: From due process to crime control
Over the past three decades, American criminal justice has shifted from a Due Process Model to a Crime Control Model. These terms two models of justice put forth by Herbert Packer (1968), in his book, The Limits of the Criminal Sanction. Both were fictional models described to show how competing priorities in criminal justice shift back and forth over time like a pendulum. The United States must emphasize the values of one or the other model since doing both is difficult. The Due Process Model most values protecting individual liberties and assuring fairness, even if guilty people sometimes go free. It values individual freedom, and the way to protect individual freedom is to uphold due process protections of the U.S. Constitution. It places a high value on the adversarial nature of justice, whereby a prosecutor and defense attorney battle it out in court to find the truth. Reliability is the most important value, for it is imperative that the right person be convicted of the crime of which he or she is accused. Packer's metaphor for this model was an "obstacle course" because, in order to ensure that no innocent persons were wrongfully convicted, the prosecution would have to overcome numerous obstacles in order to convict anyone.
The Crime Control Model most values protecting the community from crime, even if, on occasion, innocent persons are mistakenly convicted. It also values individual freedom, but suggests that the way to uphold it is to protect people from criminals. It places a high value on informal processes such as plea bargaining (when a prosecutor and defense attorney agree out of court to an appropriate sentence for an accused criminal) to expedite criminal justice operations. In this model, very few criminal trials are held, because they are expensive and unnecessary for establishing legal guilt. Efficiency is the most important value, for it is imperative that the criminal justice system operate as quickly as possible in order to keep up with the large numbers of criminal cases that enter it each day. Packer's metaphor for this model was an "assembly line" because individual defendants would be quickly processed through the criminal justice network outside of the courtroom through plea bargaining.
Because America is now firmly entrenched in a Crime Control Model,
due process rights of Americans have been eroded. As a result, the criminal
justice system is less fair today than at any time in the past thirty years.
In fact, scholars now recognize a degree of toughness in criminal sentencing
beyond mere retribution and toward vengeance and meanness. Criminal punishment
is at times downright hateful and disproportionate to the harms caused
by criminal acts, rather than objective, dispassionate, or rational.
The Criminal Law: Where Unfairness Begins
An examination of law makers and the law-making process in the United States reveals some significant facts for understanding how the criminal justice system is not fair. For example, law makers at both the federal and state level of government are:
If the law is biased in favor and/or against certain interests, we should
expect the label of
crime to be reserved for only some acts - those
committed by people unlike law-makers and the moral and financial interests
they serve. And if the label of crime is not applied to behaviors based
on the degree of harm they cause but rather is based on law-makers' perceptions
of who commits them, we should expect that the entire criminal justice
system will not be fair, because all it does is determined by the law.
Unfairness in the Label of Crime
Simply stated, the label of crime - particularly what we call "serious crime" - is not reserved for the acts that cause the most damage to Americans. Instead, "street crimes" - the Part I Index Crimes of the Uniform Crime Reports (UCR) - are the crimes that our federal government views as the most serious. These crimes - homicide, forcible rape, aggravated assault, robbery, theft, burglary, motor vehicle theft, and arson - were claimed to be the most dangerous, most frequently occurring, and the most geographically widespread crimes in the United States, which made them "serious" (Robinson 2002). Other crimes, not listed among the UCR's Index Offenses, are currently considered serious, including acts of terrorism, drug offenses, and some weapons offenses.
Acts of white-collar crime and corporate crime are generally viewed as far less serious, presumably because it is assumed that they cause less physical and financial damage, they occur less frequently than street crimes, and they are less widespread. These assumptions are demonstrably false. Acts by the rich and powerful and by corporations produce far more damage to human life and property than all street crimes combined (Reiman 2004)
Since the criminal law generally does not define these acts as crimes (and typically not as serious crimes), very little criminal justice system activity is focused on these acts. For example, more than 75% of police officers in the United States work for city and county governments, who rarely investigate acts of white-collar and corporate crime. Robinson (2005) estimates that only about 1% of all police officers in the United States are charged with investigating white-collar and corporate crimes. Thus, it should be no surprise that such offenders rarely end up in court or get punished for their crimes.
The criminal law, since it ignores the most harmful acts against Americans, is unjust because it does not hold the perpetrators of such acts accountable as required by justice as an outcome. All criminal justice activity is also necessarily unfair since police, courts, and corrections carry out these unjust laws. When police, courts, and corrections unintentionally enforce unfair law, this is called innocent bias.
The presence of innocent bias does not require bad police officers,
dishonest courtroom personnel, or unethical correctional staff. In fact,
even if every employee of criminal justice was fair, just, equitable, impartial,
unbiased, dispassionate, and objective, American criminal justice processes
would still be unjust because of innocent bias (Robinson, 2002). Innocent
bias is not the only form of unfairness in the criminal justice system,
but it is the most important and the most dangerous, for its effects are
widespread and not easily rooted out as are more apparent forms such as
police brutality or corruption.
Innocent Bias in Policing
Since police investigate alleged crimes and are the primary entry point for cases into the criminal justice system, innocent bias continues with their activities. The main sources of innocent bias in policing are their disproportionate focus on street crime and disproportionate location of most police officers in the urban areas of America (Robinson 2002).
Given these facts, it is inevitable that there will be disparities in stop and arrest rates between Caucasians and people of color. It is also certain that force will be more likely to be used against people of color than against Caucasians. Government statistics verify these realities, as African Americans and Hispanics are far more likely to report having run-ins with police and to be stopped and harassed by police. They are also three to four times more likely to be arrested and are disproportionately more likely to have force (including lethal force) used against them (Robinson 2005).
Are there crime data that show people of color commit so much more crime than Caucasians that might explain these disparities? No, there are not. Since police disproportionately focus on street crimes and are disproportionately located in urban areas, they are more likely to encounter, approach, stop, question, detain, arrest, and use force against the people who live there.
The people who live in urban areas are more likely to be poor and people
of color (U.S. Census 2003). On top of this, because police are given wide
discretion to decide how to behave and when to act, any and all
stereotypes they carry will be detrimental to those who have been stereotyped.
Given the image of the typical criminal - a young, minority male from the
inner-city - police profiling occurs where officers look for certain
people more than others (Walker, Delone, and Spohn 2002). The results can
be dramatic. For example, nationally African Americans and Hispanics are
more likely to have their cars searched when stopped by the police, yet
are no more likely to be arrested after stops (Bureau of Justice Statistics
2003). This suggests people of color are being targeted by the police when
the evidence does not warrant it (Robinson 2005).
Innocent Bias in Courts
After an arrest and booking, the courts take over. In the courts, we see innocent bias in decisions related to charging, release through bail or use of preventive detention, plea bargaining, and some stages of the criminal trial (such as voir dire). We also see disparities based on differential access to private versus public attorneys.
One outcome is that the poor are more likely to be detained prior to the disposition of their cases and are more likely to be sentenced to some forms of punishment for the same crimes. Additionally, there is some evidence of sentencing bias in some jurisdictions against people of color (Walker, Delone, and Spohn 2002).
With regard to charging, prosecutors have tremendous power in the courts and they single-handedly decide whether charges will be pressed against a defendant and what charges will be pursued. Because prosecutors also have wide discretion in such matters, they largely determine what happens to a person who has been arrested by the police.
Prosecutors are not disinterested, objective actors concerned with fairness. Instead, they are representatives of the state and its crime control apparatus. They are concerned with clearing cases from the courts' dockets and winning as many cases as they can by obtaining criminal convictions. These officers of the court are bound by a commitment to procedural justice and to the ethics of their profession, yet they carry around in their heads the same stereotypes that we all do about criminals - that they tend to be poor and from certain racial and ethnic groups.
Also, the poor and people of color are disproportionately arrested and make up the largest share of courthouse clients. Experience tells prosecutors these people cause more harm to society, even tough this is false. Nevertheless, the result is that poor people and people of color are more likely to be charged with serious crimes, and are more regularly denied bail and held in preventive detention awaiting trials. They are also less able to afford bail when it is granted and thus are more likely to be held in jail awaiting the final disposition of their cases (Robinson 2005).
The ideal of criminal court processes is the criminal trial. Although the right to trial is mentioned in the Declaration of Independence, three Amendments to the U.S. Constitution, and numerous court cases, the reality is that trials rarely happen. Currently, only about 3% of felony cases lead to a criminal trial (Bureau of Justice Statistics 2003). The rest are resolved through informal means such as plea bargaining, which occurs in private, behind closed doors, without a determination of guilt beyond a reasonable doubt, and without regard for the rights of the accused or the victim of the crime.
It is no wonder that no one seems to like plea bargaining - it is regretted by both conservatives and liberals - yet is necessary because of the more than 14 million arrests each year made by the police. Courts employ the fewest number of criminal justice employees and receive the lowest portion of resources in any given year, far less than police and corrections. As a result, courts must plea bargain in order to resolve cases.
The primary problem with plea bargaining is that it is clearly unjust - it fails to respect due process requirements and does not achieve justice as a process, thereby assuring that some innocent people plead guilty for crimes they did not commit (Walker 1998). It also does not achieve justice as an outcome, for the guilty receive far less punishment than they deserve under plea bargaining.
Plea bargaining is also fundamentally unfair. The prosecution has far more power and resources than the typical defense attorney in the United States, who is a public defender with thousands of cases each year to handle. About 80% of American court clients are indigent, meaning they cannot afford a private attorney (Bureau of Justice Statistics 2003). Although public defenders tend to be experts in criminal procedure, they have little incentive to take cases to trial when their caseload is so high and their access to resources so low; therefore, they often assume the guilt of their clients and encourage guilty pleas. This works as a disadvantage to the poor, who also tend to disproportionately be people of color.
The following are facts about private attorneys versus public defenders: defendants with private attorneys are more likely than defendants with public attorneys to be released prior to the disposition of their cases; conviction rates of defendants with public and private attorneys are nearly identical; defendants with private attorneys are less likely than defendants with public attorneys to be sentenced to prison for their crimes and more likely to be sentenced to probation but are more likely to have longer sentences; of those defendants sentenced to prison, those with public attorneys are sentenced to shorter sentences than defendants with private attorneys (Bureau of Justice Statistics 2003). So, public defenders can earn their clients shorter sentences, in part because they are part of the courtroom workgroup, but their clients are more likely to be detained in jail until their cases are disposed of, and their clients are more likely to end up in prison.
When trials do (rarely) occur, they also are fundamentally biased in the favor of those with resources to hire jury consultants to hand pick sympathetic jurors and expert witnesses to question the government's evidence. The poor client, who is disproportionately likely to be a minority, cannot afford to seat sympathetic jurors and extend a trial beyond a few days or a week at the most, and are thus less likely to establish reasonable doubt and be acquitted of the charges. For refusing to plead guilty, the convicted defendant will now receive a greater penalty and/or a longer sentence.
The good news with regard to sentencing is that there is little evidence at the national level of sentencing disparities. Without distinguishing between types of offenses, sentencing generally does not appear to be biased against any race of people. For example, African Americans and Caucasians appear to receive the same sentences within the same categories of offenses. The average prison sentences imposed on convicted felons by state courts are virtually identical for African Americans and Caucasians for violent, property, drug, weapons, and other felonies (Bureau of Justice Statistics 2003).
The primary reason for this is that sentencing has been made highly predictable based on legal factors such as seriousness of the offense and prior record - now virtually all "serious offenders" will receive nearly identical sentences based on the seriousness of their offenses are the length of their records. Because of mandatory sentencing and sentencing guidelines, is make it harder for prosecutors, judges, and juries to be discriminatory in sentencing matters. Mandatory sentencing mandates a minimum sentence that must be served after a criminal conviction. Sentencing guidelines provide a range of punishment between a minimum and maximum amount based on legal factors. Such innovations remove sentencing discretion from sentencing matters and provide more uniformity in sentencing based on seriousness of offense and prior record.
Yet, in borderline cases, the only cases in which discretion can come into play, there is evidence that discretion does come into play - prosecutors are more likely to press charges and levy a greater number of charges and more severe charges against people of color and poor people (Walker, Delone, and Spohn 2002). In other words, race and class biases affect sentencing when it is possible for them to do so.
There is evidence of clear
sentencing bias against African Americans and Hispanics at the federal
level, particularly with regard to drug offenses (Robinson 2005). African
Americans are also more likely than Caucasians to be sentenced by state
courts to incarceration in prison for drug offenses. This is likely due
to disparities built into the criminal law and into policing.
Innocent Bias in Corrections
Corrections represents the end point of the criminal justice system. As such, it is the best place to look for unfairness in the criminal justice system. Simply stated, the nation's men, its poor, and its minorities are over-represented among nearly all correctional populations.
The characteristics of those that we regularly end up in state prisons and jails include the following:
The war on crime is clearly having its greatest effects on young African American males. For example, the Bureau of Justice Statistics (2003) reports that at mid-year 2002, 12.9% of all African American males between the ages of 25 and 29 years were in prison, versus only 4.3% of young Hispanic males and 1.6% of young Caucasian males. Thus, young African American males are 7 times more likely than young Caucasian males and 2 times more likely than young Hispanic males to be in prison. At mid-year 2002, 12% of African American males in their 20s and 30s were in prison or jail, compared with 4% of Hispanic males in this age group, and only 1.3% of Caucasian males. In fact, at mid-year 2002, African American males in their 20s and 30s made up an astounding 596,400 of all 2,021,223 million inmates in the United States, or nearly 30% of all people locked up in America. African American females were also 2.3 times more likely than Hispanic females and 4.5 times more likely than Caucasian females to be imprisoned in 2001.
Of the nation's jail populations at the end of 2000, Caucasians made up 43% of inmates, African Americans made up 42% of inmates, and Hispanics made up 15% of inmates. The rate of jail incarceration was 4.6 times higher for African Americans than for Caucasians and 1.6 times higher than for Hispanics.
As for probation, at the end of 2001, men made up 78% of probationers and women made up 22%. Caucasians made up 55% of probationers, African Americans made up 31%, and 12% were Hispanics. As for parolees, at the end of 2001, 88% were men and 12% were women. African Americans made up 41% of parolees, 39% were Caucasians, and Hispanics made up 19%.
The death penalty is plagued by the same disparities. Men are more likely to receive the death penalty, as are poor people, and killers of Caucasians. Death sentences are most likely when African Americans murder Caucasians (Bohm 2003). There is also clear evidence that innocent people have been put to death, even recently, which is perhaps the clearest example of system of criminal justice that is characterized by unfairness (Death Penalty Information Center 2003).
From these statistics, it
is clear who is suffering most from our current criminal justice policies.
Young, poor, minority men (and increasingly women) are most affected by
mass imprisonment and other forms of punishment. If you accept that poor
people and people of color are no more likely to be criminal and/or dangerous
than people in other classes, races, and ethnic groups (Robinson 2002),
then the logical conclusion is that the criminal justice system is unfair.
Conclusion
I have shown in this essay that American criminal justice processes are unfair. Most unfairness in criminal justice practices grows out of the criminal law, which is unjust in defining some harmful acts as crimes (and serious crimes) while ignoring others. The main problem is that street crimes cause far less damage than corporate and white-collar crimes, yet our focus remains squarely on the former. The result is that criminal justice activity is unfair mostly because of what it ignores rather than because of what it does.
In essence, American criminal law can be described as inequitable, partial, biased, and subjective, serving some limited moral and financial interests more than others. The criminal law is made by people who are not demographically representative of the population, is voted for by people who are not demographically representative of the population, and is strongly influenced by limited moral and financial interests.
Law-making is ideological and political in nature, aimed at serving certain moral and financial interests. Is it a coincidence that the criminal law does not define acts by people who look like law-makers and their supporters as crimes or serious crimes? Whether it is intended or not, the criminal law functions to serve the interests of law-makers and people like them, making criminal justice activity unfair.
When it comes to criminal justice policy, it is generally unplanned and not rooted in empirical evidence about the etiology of crime, meaning it is often planned on a whim based on the hunch of legislators (Welsh and Harris 1999). This means it is not objective, rational, or dispassionate. These are the authors of the vengeful criminal justice policies which are so popular in the United States.
In fact, America is one of the toughest countries in the world - we practice the death penalty even though the majority of our allies do not, our incarceration rate is the highest in the world, average prison sentences for serious crimes compare with other nations, and we sentence relatively minor offenders to much longer sentences than most countries through practices such as mandatory sentencing and truth-in-sentencing laws.
The result of all this is
that much criminal justice practice is, in reality, much different than
the ideals on which America's criminal justice system rests (Robinson 2002).
Instead of being fair, just, equitable, impartial, unbiased, dispassionate,
and objective, America's criminal justice system is often unfair, inequitable,
partial, biased, impassioned, and subjective.
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